Should All Teen Sexting Be A Crime?

It seems like everywhere you look these days, there’s another lurid story about teen sexting gone horribly awry. Some, like the Rehtaeh Parsons case, which led to a young girl’s suicide, are legitimately horrifying and involve criminal acts far worse than the cutesy term “sexting” would imply. Others, like the case where a girl got kicked out of school for texting a boobie pic to her friend which was subsequently shared around by the lacrosse team, just seem ridiculous. But all of these acts are subject to the same clumsy laws, laws which treat what can be normal sexual behavior in the same way they treat genuine harassment, which just seems extremely backwards.

I’m not arguing that sexting is without its risks. We should teach teens to be careful who they share intimate pictures with, just like we should be as adults. But should a breach of privacy on one end (either by a parent or an untrustworthy friend) really be grounds for child pornography prosecution and a spot on the sex offender’s registry list?

According to a nationwide study by the Crimes Against Children Research Center, arrests for sexting in instances where there are no adults involved and no aggravating circumstances are relatively rare. This is probably because if teens are doing it right, nobody is likely to know about it but them. But these kinds of cases still account for 18% of arrests, which seems like 18% too many.

Here is a fact: teens have been experimenting with showing each other their body parts since the beginning of time. And teens have been experimenting with naked pictures since they first had access to photographic equipment. I know I tried it out when I was a teenager (surprise!) but my photos were never passed around, so it was my secret. When I turned 18, I was still much closer to being a high school kid than anything, and that’s when I started shooting nudes in earnest. (There was also that amateur porn I made for, ahem, personal use only.) When I shot them with people who made me feel safe, it was a good experience that seemed to help me work some things out. Ten years later, I don’t really do it anymore. But I don’t regret it.

In a culture where “becoming a woman” means constantly being looked at and objectified, it’s only natural to try to see yourself how others see you, or maybe even to produce images that match how you would like to be seen. Or, more existentially, as you start to do sex stuff with other people, it’s only natural to want to know what those other people are experiencing when they’re looking at you naked. Or maybe you just want to commemorate your newly grown and sexy body, and maybe also share that with someone you love. It can be a natural and healthy part of growing up.

Of course, problems arise when every teen with an itchy trigger finger is equipped with the means to send a photo around a school in a matter of nanoseconds. And once this happens, you can’t put the toothpaste back in the tube. Is it smart, under these circumstances, to send a sexy photo to someone whose loyalty may or may not be subject to the constantly shifting winds of hormones and popularity? Probably not. But I don’t think it should be a crime. If you are old enough to consent to actual sex, you should be old enough to consent to sexting, no?

It seems like the height of ridiculousness to me to prosecute teens as child pornographers for doing things that teens have been doing forever. Instead, we need laws that stress the importance of consent. “We should draw the line between my daughter stupidly sending a photo of herself to her boyfriend and her boyfriend sending it to all his friends to humiliate her,” Marsha Levick of the Juvenile Law Center told Slate‘s Emily Bazelon. Agreed!

In some states, this is starting to happen. A new law in Pennsylvania decriminalizes consensual sexting between those who are legally able to have sex with each other, while leaving sexting “with malicious intent” a criminal act. But consensual sexting is still a misdemeanor, which seems pointless. “We should have laws that offer a middle ground between no charges at all and heavy prison sentences with a lifetime on the sex-offender register,” writes Bazelon (of the “bullying” type of sexting). “We should have laws that specifically and deliberately address teen sexting.” As you know, I am no fan of feeding adolescents into the state’s fucked up prison system, even if they’ve done something wrong. Maybe teens who text other teens’ photos against their will could be sent to a course on consent and empathy, instead? Or therapy, if their lack of empathy is the result of underlying psychological problems?

And maybe let’s look towards some technological solutions, too. I mean, teaching kids about birth control is much more effective at preventing teen pregnancy than “abstinence only” education. What if, rather than trying to eradicate this impossible-to-eradicate behavior, we tried to make it as safe for them as possible? The app Snapchat isn’t quite it, but it’s getting there. In it, an image can be shared for a limited amount of time, after which it’s gone forever. If someone takes a screenshot, it notifies the sender so you at least know that person can’t be trusted. Maybe future editions will disable the screenshot function completely?

I can see why some people are freaked out by the digitization of teen sexual behavior (can’t they just fumble in the backs of cars like we did?) but there is at least one upside that I can see: sexting is unlikely to result in pregnancy. TL;DR: Let’s try to make being a hormonal adolescent less terrifying, not more.

It would seem that protecting minors from exploitation from predatory adults and commercial exploitation of their photos would be reasonable, but criminalizing ALL “sexting” between minors as an adult felony-level offense would seem to alienate minors from seeking help if they are engaging in non-sexually explicit image sharing that turns into harassment, not to mention leading to arguments over what is considered “sexually explicit” — a girl in a bra shooting a peace sign at the camera, like in the PA CA? Or what?

I can imagine of course that the intent of “sexually explicit” is to ban lewd displays of genitalia, etc, but somehow I can’t imagine that would be criminalized and photos of breasts (or bras) would be exempt, at least I can’t see that being clarified to kids in “education programs” either as offered in schools or through “diversionary” programs. Guess they’re supposed to “abstain” from this sort of behavior until they’re what — married? — or at least over 18, at which time the schools and the state might likely care a whole lot less about how they might be victimized by the use or abuse of these images.